Judgment:
G.S. Singhvi, J.
1. The Petitioner has filed this writ petition for issue of a direction to the respondents to reinstate him in service as Beldar and to give him all consequential benefits.
2. In his writ petition the petitioner has stated that he was engaged as Beldar w.e.f. 19.2.87 under Muster Roll No. 9059 on Reengus-Khatu Road, by the Assistant Engineer, P.W.D. Sub Division, Dataramgarh, district Sikar. He there-after continued to work under non-petitioner No. 2 till 11.10.88. During this entire period he had worked under the same Sub-Division. After he had completed 455 days of work, his service was terminated by the non-petitioner No.2. Before terminating his service non-petitioner No. 2 did not give any notice or pay in lieu thereof and retrenchment compensation, to the petitioner. The petitioner has stated that the P.W.D. comes within the definition of the 'industry' under Section 2(J) of the Industrial Disputes Act, 1947. He falls within the definition of 'workman' under section 2(s) of '1947 Act'. On account of the violation of the provisions of Section 25F, the petitioner's termination Is liable to be declared as void, The petitioner has also claimed enforcement of the principle of equal pay for equal work.
3. In reply to the writ petition, the non-petitioners have stated that the petitioner was engaged on daily wages w.e.f. 11.2.87. The non-petitioners have not disputed the number of days for which the petitioner has actually worked. What is stated is that the provisions of 1947 Act are In-applicable. He had worked under various schemes, like Rural Land-less Employment Guarantee Programme, National Rural Employment Programme and in the Famine Relief Work. The non-petitioners have stated that he was given wages according to the rates fixed by the Labour Department. The non-petitioners have also stated that by virtue of the Circular issued by the Departmental Authorities, the provisions of the Industrial Disputes Act, 1947 are not applicable. Rather the schemes are exempted from the purview of the Industrial Disputes Act, 1947. The non-petitioners have also stated that the petitioner had himself stopped coming for work.
4. During the course of healing the Court asked Shri B.L. Awasthi, learned Dy. Government Advocate to produce the notification issued under the Rajasthan Famine Relief Work Employees (Exemption from Industrial Laws) Act, 1964. He however, expressed inability to produce such notification.
5. A look at the provisions of 1964 Act makes it clear that the exemption from, applicability of 1947 Act etc. can be ordered only by a notification issued by the Government. There is no automatic exemption from the applicability of the provisions of 1947 Act.
6. Admittedly, the petitioner had completed more than 240 days during the period of 12 months immediately preceding the date from which his service is said to have been terminated. Although, according to the non-petitioners, the petitioner had worked under various schemes the non-petitioners have not disputed the statement made by the petitioner that he had worked during the aforesaid period under the same sub-division. The petitioner had worked under the Assistant Engineer, P.W.D. Sub Division, Dataramgarh throughout the period of his employment. The source from which the petitioner may have been paid his wages is not relevant for the purpose of applicability of Section-25F of 1947 Act read with Section 25B of the said Act. The only requirement is that the workman must have actually worked for a period of 240 days under an employee. The petitioner had admittedly worked for the said period under the same employer. It is an admitted position that the provisions of Section 25F had not been complied with, in as much as, notice or pay in lieu thereof and retrenchment compensation had not been paid to the petitioner at the time of termination of his service.
7. Although, the non-petitioners have pleaded that the petitioner had voluntarily absented from duty w.e.f. 15.10.88, the learned Dy. Government Advocate had failed to place any material before the Court to substantiate this assertion. No affidavit of the Assistant Engineer under whom the petitioner was engaged, has been filed. No documentary evidence has been produced to show that any notice was given to the petitioner or any entry was made regarding the absence of the petitioner.
8. Shri Balvada, learned Counsel for the petitioner has also placed reliance on the order passed by this Court on 11.12.91 in S.B. Civil Writ Petition No. 931/89 Kana Ram v. State of Rajasthan and Ors. as also S.B. Civil Writ Petition No. 3561/89 Jhabar v. Assistant Engineer, decided on 5.1.90.
9. I have looked into those judgments also. Since there has been a non-compliance of mandatory requirement of Section 25F, the termination of the service of the petitioner is liable to be declared as illegal and void. It is accordingly so declared. The non-petitioner are directed to take the petitioner in service. So far as back wages are concerned, the petitioner is free to make an application under Section 33C(2) of 1947 Act. The writ petition is decided as indicated above. Costs made easy.